ISLAMABAD: The Islamabad High Court (IHC) on Tuesday held that the imposition of Article 245 of the constitution in the federal capital did not bar its powers to entertain petitions related to fundamental rights.

Justice Athar Minallah, during the hearing of objections raised by the registrar office on petitions moved under Article 199 of the Constitution (fundamental rights), observed that “this court has jurisdiction to proceed with petitions filed under Article 199 of the Constitution of Pakistan.”

The federal government on July 24 invoked Article 245 in Islamabad and called out 350 troops of the army in aid of civil power. According to Article 245, “A high court shall not exercise any jurisdiction under Article 199 in relation to any area in which the armed forces are, for the time being, acting in aid of civil power in pursuance of Article 245.”

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The IHC institution branch on Monday stopped entertaining petitions filed under Article 199. On Tuesday, the lawyers, whose petitions were not entertained by the registrar office, appeared before Justice Minallah along with president Islamabad Bar Association Naseer Kayani and Syed Nayyab Hassan Gardezi, who had challenged the imposition of Article 245 on July 28.

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Justice Shaukat Aziz Siddiqui will hear the petition on Wednesday.

During the arguments on Tuesday, advocate Gardezi said by invoking Article 245 the government had curtailed the IHC jurisdiction which was against the independence of the judiciary.

However, Justice Minallah observed that the notification to call out the army did not mention any reason for invoking Article 245.

He remarked that the courts themselves determined their jurisdiction and mere issuance of a notification neither curtailed their powers nor their authority to administer justice.

He added that the imposition of Article 245 had already been challenged and the petition against calling out the army was still pending for adjudication.

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After intense criticism, the government on Tuesday said the imposition of Article 245 did not affect the high court powers to deal with cases related to the fundamental rights.

According to Clause 4 of the Article, “Any proceeding in relation to an area referred to in clause (3) instituted on or after the day the armed forces start acting in aid of civil power and pending in any high court shall remain suspended for the period during which the armed forces are so acting.”

The reply from the attorney general office submitted to the court on Monday did not say anything about the Islamabad High Court’s jurisdiction in hearing the matters related to Article 199. It, however, said the federal government “validly invoked Article 245” in the federal capital.

On Sunday, federal information minister Pervez Rashid, who also holds the portfolio of the law minister, while talking to Dawn had confirmed that the IHC cannot take up such petitions for the next three months.

However, the law ministry’s reply to the petition stated that invoking of Article 245 did not hinder IHC’s authority to entertain petitions related to the fundamental rights.

Explaining Clause 4 of Article 245, which suspends a high court’s jurisdiction of dealing with the petitions of Article 199, the reply added: “This suspension relates only to the extent when armed forces, in fact, act in aid of civil power.

“In other words, the jurisdiction of the court is fully and absolutely intact in all matters except actual acting of the armed forces in aid of civil power and the federal government’s direction of calling the armed forces in aid of civil power.”

The reply, however, insisted that IHC “lacks jurisdiction to entertain the petition in term of clause (2) of the Article 245,” which says, “the validity of any direction issued by the federal government…shall not be called in question in any court.” It requested the court to dismiss the petition against invocation of Article 245.

In the National Assembly, Interior Minister Chaudhry Nisar Ali Khan said neither the writ of any high court had been curtailed nor the government intended to restrict the judiciary.

He said Article 245 had been invoked for giving constitutional protection to the military personnel deployed at seven locations across the federal capital for aid to the civil administration.

The minister clarified that the decision to impose Article 245 was discussed within the party, with the army leadership and constitutional experts.

Published in Dawn, August 6th, 2014